Playing Nice

Cold, hard legalese can get you in trouble in the non-profit sector.

By Bruce D. Collins|September 01, 2007 at 12:00 AM

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I concluded long ago there is no uniquely non-profit way to practice law. Sure, we in-house non-profit lawyers have a specialty, but so does every other lawyer in every other kind of practice. All lawyers manipulate language in one way or another, but different practice settings require different styles.

Non-profit organizations put great stock in being nice. In the absence of a profit motive, the mission motive takes over and that usually means doing something good which, in turn, means people tend to be nice about it. And that’s great–but it means most of the legal forms you may use in handling the daily business of your organization will have to be tweaked. As legal documents they’re fine, but as legal documents for non-profit organizations they aren’t nearly nice enough.

Several years ago, I was asked to write up an independent contractor agreement for a consultant we had used many times and who was very good at her job. We were so impressed with her work that we wanted to have a closer relationship with her. Management produced the deal points, and I turned them into an agreement containing the so-called boilerplate language that protected us along with a complete list of the consultant’s duties. A few days later I got word that upon reading the document our consultant nearly burst into tears. Apparently, when she read about obligations, warranties, the termination clause, the penalty clause and other such legalities, the warm feelings she had for us had melted away. She thought we didn’t trust her. She was so upset she was ready to sever all ties with us.

You’ll have to trust me that the document she read was a pretty bland statement of the terms to which she had already–and quite happily–agreed. But as her reaction suggested, she found it off-putting to be referred to by the impersonal term “Consultant” throughout and to see the nice relationship she thought she had with us starkly reduced to several itemized categories with odd punctuation like (i), (ii) and (iii); italicized provisos; and words such as “whereas” and “hereinafter.” Actually, I was rather pleased with the document because it was a very concise and accurate statement of the new legal and business relationship we were entering into with her. There was not a single wasted sentence, clause or word. In truth, it was a thing of beauty.

But it wasn’t nice. In describing the new legal and business relationship between our non-profit organization and this woman, I had eliminated all of the humanity. The text of the agreement contained no hint of the respect the parties had for each other or their very positive working relationship up to that point. Even though the document was legally sound, its emotionally barren tone actually threatened the business relationship. Sensitive people enter business relationships in the for-profit world too, of course, but the profit motive tends to overlay those relationships in a way that is often absent in our sector. In their world, as long as your legal drafting protects the money it could be laced with direct insults and they wouldn’t care. Somebody might get his or her nose out of joint, but the deal would survive. In the non-profit world, you have to be different–namely nicer–because the people drawn to the non-profit world are different.

In this particular case I rewrote the contract agreement as a personal letter from “us” to “you” in a conversational tone, yet without stinting on any of the legalities. In the end, it was longer than the original document and I had to ponder a bit on how to express certain concepts. But it was nicer. It might even have been nice. And I’ve tried to be nicer in my drafting ever since.

Bruce Collins is the corporate vice president and general counsel of ?? 1/2 C-SPAN, based in Washington, D.C.

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